Constitutional Court gives green light to renaming UOC: what’s next?

Did the Constitutional Court open the way to banning the UOC? Photo: UOJ

On 27 December 2022, the Constitutional Court of Ukraine declared constitutional the amendment to the Law of Ukraine "On Freedom of Conscience and Religious Organizations", by which the UOC's enemies want to rename it. In early 2019, a group of MPs appealed to the Constitutional Court over whether the amendment was in line with the Constitution, after which the law was in fact blocked. And now the court determined - the law on renaming meets the Constitution.

The fact that the ruling, which has not been considered for almost four years, is made now is no coincidence. We all know that for the last one and a half to two months the authorities have been "on the warpath" with the Church.

Security Service searches, sanctions against hierarchs, anti-church bills and black PR of an unprecedented scale – all this indicates that Zelenskyy is very serious.

Law of Ukraine No. 2662-VIII "On Amendments to Article 12 of the Law of Ukraine 'On Freedom of Conscience and Religious Organizations' regarding the name of religious organizations (associations) which are part of the structure (are part) of a religious organization (association) whose governing centre (administration) is located outside Ukraine in a state that is legally recognized as having committed military aggression against Ukraine and/or temporarily occupying part of Ukraine's territory", or simply the law on ”renaming” was adopted by the Verkhovna Rada on December 20, 2018, i.e. five days after the so-called “Unification Council” on December 15, 2018.

What is the law on renaming about?

Its meaning is obvious: after the UOC refused to participate in the creation of the OCU, P. Poroshenko decided to destroy it by renaming it and forcing as many bishops as possible to join the OCU. This calculation also proved untenable. What did the Law of Ukraine 2662-VIII "on renaming" demand? It supplemented Article 12 of the Law of Ukraine "On Freedom of Conscience and Religious Organizations" ("Statutes (regulations) of religious organizations") with Parts 7 and 8.

Part 7 reads that the denomination whose governing centre is located in the aggressor country, "must reflect in its full name, specified in its statute (regulations), affiliation with a religious organization (association) outside Ukraine, which it belongs to (is a part of), by obligatory reproducing in its name the full statutory name of such religious organization (association), possibly adding the words ‘in Ukraine’ and/or indicating its place in the structure of the foreign religious organization”.

In essence, the initiators of the law "on renaming" demanded that the Ukrainian Orthodox Church be forcibly renamed "the Russian Orthodox Church in Ukraine". However, if one reads carefully the Statute of the UOC in effect at the time, one can see that the UOC has no governing bodies abroad. Not a single bishop of the ROC, including the Moscow Patriarch, participates in the activities of the governing bodies of the UOC, just the opposite, Ukrainian bishops participate in the work of the Local Council and the Council of Bishops of the ROC, as well as the Holy Synod. The initiators of the bill caught on to this fact and defined it as a sign of the UOC's entry into the ROC. In addition, the Statute of the ROC states that the UOC is an integral part of the ROC.

Part 8 of Article 12 of the Law “On Freedom of Conscience and Religious Organizations” states that the signs of membership in a foreign religious organization are:

• reference to it in the statute of a Ukrainian religious organization;
• reference to this in the statute of a foreign religious organization;
• the presence of representatives of a Ukrainian religious organization in a foreign religious organization.

In the time since the adoption of the law "on renaming", the UOC has made statements that this law does not apply to it because its status as an independent and self-governing organization is enshrined in the UOC Statute. These statements became even more vocal and well-reasoned after the Council of the UOC in Feofaniya on May 27, 2022, where it was decided to completely break off all relations with the ROC, except for the eucharistic communion.

The corresponding resolution of the Council of the UOC of 27.05.2022 says: "The Council adopted the relevant additions and amendments to the Statute on the government of the Ukrainian Orthodox Church, indicating the full autonomy and independence of the Ukrainian Orthodox Church". That is, any mention of the ROC was removed from the Statute of the UOC. In addition,

• The Primate of the UOC stopped mentioning the Patriarch of Moscow as its head during services but began to list all the bishops of the Local Churches;
• It was decided to resume chrism-making in the UOC (previously chrism was received from Moscow);
• The bishops of the UOC are no longer members of the governing bodies of the ROC.

All of this more than attests to the fact that the UOC is not part of the ROC. The UOC Statute makes no mention of this, and representatives of the UOC do not participate in the governing bodies of the ROC.

However, not everything is so rosy. There is also a paragraph in the law "on renaming," according to which the UOC can be recognized as part of the ROC on the basis of the ROC Statute.

It says very clearly: "Jurisdiction of the Russian Orthodox Church extends to people of the Orthodox confession who live on the canonical territory of the Russian Orthodox Church: in the Russian Federation, Ukraine...". The whole "Chapter X. Ukrainian Orthodox Church" is devoted to the UOC, from which we can conclude about the UOC’s accession to the ROC, although it does not explicitly state so.

Can the UOC be banned on the basis of the laws of Russian structures?

However, to what extent can the provisions of Russian regulations be binding on Ukraine? They can write anything they want in Russia, should the courts and other state bodies in Ukraine enforce it?

In fact, to recognize the UOC as part of the Russian Orthodox Church on the basis of what is written in Russian documents is like recognizing the Donetsk, Luhansk, Zaporizhzhia and Kherson regions as part of the Russian Federation on the basis of laws adopted in Russia.

It is thought that the judicial argument in defence of the UOC should be based on this argumentation when it comes to court proceedings.

Many mass media report about the decision of the Constitutional Court in the following way: "The Constitutional Court obliged the UOC of the Moscow Patriarchate to change its name.” This is certainly not true; the Constitutional Court merely ruled that the law “on renaming” complies with the Ukrainian Constitution.

At a briefing on the decision of the Constitutional Court, its judges S. Holovaty and A. Petryshyn said that the legislature will decide the fate of the UOC. The connection between the UOC and the Russian Orthodox Church should be proved by religious expertise.

Paragraph "II. Transitional and Final Provisions" of the Law “on renaming” states:

"2. Within one month from the date of entry into force of this Law... the central executive body implementing the state policy in the field of religion shall conduct a religious expert examination of the registered statutes of religious organizations (associations) to determine the circumstances provided for in Parts seven and eight of Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’ (Bulletin of the Supreme Council of the USSR, 1991, N 25, Article 283)".

That is, the State Service of Ethnopolitics and Freedom of Conscience, which is now headed by the long-time and active UOC antipathic V. Yelensky, will have to review the Statute of the UOC for signs of the UOC’s integration into the ROC. What will it find there? That is right, nothing! If to be honest.

On the "objectivity" of the Constitutional Court

In reality, one can find or rather interpret anything and anyway one wants. If only there were, as they say, a political will. President Zelenskyy and other representatives of the authorities also unambiguously stated that there is such a will. The fact that the authorities decided to destroy the UOC is evidenced by all recent events: searches, defamation in the media, the introduction of another anti-church bill in the Verkhovna Rada, the termination of the lease for the Upper Lavra churches in Kyiv, and certainly the decision of the Constitutional Court. It was also adopted on the basis of far-fetched arguments. Judge for yourself, the statement of the Constitutional Court says:

"In reaching its decision, the Constitutional Court of Ukraine took into account the decision of the European Court of Human Rights in the case 'Ilyin and Others v. Ukraine' where in particular it noted: "the very fact that the State requires a religious organisation wishing to be registered to adopt a name which makes it impossible to mislead believers and society as a whole and through which it can be distinguished from already existing organisations can in principle be considered a justified restriction of its right to choose its name freely".

In other words, the decision taken as an example is completely inappropriate for this case because the "Ilyin and Others v. Ukraine" case goes not about an existing religious organization like the UOC but about one “wishing to be registered", i.e. newly created.

And if this newly-created organisation wants to be called by the same name as the existing organisation, then the state has the right to restrict the freedom to choose a name.

If the UOC does not want to be renamed?

This apparent bias suggests that the most likely scenario would be that the UOC would be recognized by V. Yelensky as part of the Russian Orthodox Church. And then the law "on renaming" provides the following. The UOC structures will be required under paragraph 3 of the Law "within three months to make amendments to its statute (regulations) in accordance with the law and submit them for registration in the prescribed manner".

That is, within three months the UOC will have to change its name to the "Russian Orthodox Church in Ukraine". Naturally, it will not do this. We go further with the text:

"4. If within four months (nine months for religious communities) from the date of entry into force of this Law and/or entry into force of the law ... the religious organization (association) has not made the changes to its official name as required by law and has not submitted appropriate changes to its statute (regulations) for registration, its statute (regulations) shall be void to the extent it defines the full official name of the religious organization (association)".

In other words, the UOC does not become illegal and is still a legal entity but only loses its name. Is it terrible or not? Judging by the further text of the law "on renaming", the UOC will be banned from having its chaplains in law enforcement agencies. But in reality, things can turn out to be much more serious. After all, the name is an identifier of a legal entity in legal relations. And if there is no name, there are no legal relations. All contracts for rent, utilities, land use and so on can be suspended for all parishes, monasteries, brotherhoods, and so on. In addition, there is no doubt that the "vacant" name "Ukrainian Orthodox Church" would be immediately appropriated by the OCU, and state agencies would register it under that name.

What options does the UOC have to protect itself from such raiding?

Ironically, one option has been voiced by V. Yelenskiy. In a recent interview, he expressed a fear that if the UOC is banned, its parishes might not want to join the OCU but rather register as some "autonomous" communities that are not subordinate to any religious centres. They have the right to do this.

But will the communities agree to this? Still, there are other ways. What are they?

First, it is trusting in God and praying to Him. This is usually the last thing we would do, but it is still the primary thing. God said: "I will build My Church, and the gates of hell shall not prevail against it..." (Matthew 16:18).

Secondly, it is an appeal to public opinion, including at the international level, in asserting one's constitutional rights. Conviction on specific facts and examples that the UOC together with the Ukrainian people bears all the hardships of the war and is involved in the defence of Ukraine no less (in fact, more) than other denominations, and it does not deserve the persecution it is subjected to.

Thirdly, to use all legal remedies to challenge the decisions of the State Service for Ethnopolitics and Freedom of Conscience to recognize the UOC as part of the Russian Orthodox Church in case such a decision should follow. As has already been said, the legal basis for such an appeal is the fact that, according to the Statute of the UOC, it is in no way connected to the ROC and the provisions of the Statute of the ROC in Ukraine can have no legal force. This will need to be proved in the courts and by human rights organizations, including international ones.

With all of these efforts, the UOC can defend its right to the name, and believers can defend their right to freedom of conscience if God wills it. In any case, we must not betray Christ and His Church, we must not break down, we must not go into a union with the OCU, in which the "bishops" are "ordained" by the excommunicated Filaret Denysenko, and the Lord will not leave us.

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